Abstract

Most discussions of modern war powers under the U.S. Constitution assume that wars are no longer formally "declared." The United States, it is agreed, has declared war only five times in its history, the last being in World War II. But the commentary is deeply divided over how this observation affects the President's power to initiate the use of armed force and the President's powers during wartime.

This article argues that these debates are fundamentally misconceived. Far from being a historical anachronism, declarations of war, in the constitutional sense, are commonplace in modern practice. The U.S. has made such a declaration in essentially all of its major modern conflicts. They have been made, however, not by the Congress, but by the President. Perhaps out of a sense of constitutional unease, we avoid actually calling them "declarations of war." But, as the article shows, the essence of a formal declaration of war has long been simply the public announcement of sustained military hostilities and a statement of the conflict's goals and reasons.

This conclusion simplifies the modern debate over war power in three ways. First, the central question is whether the President can declare war (not whether the President can fight an "undeclared" war). Second, when Congress authorizes the President to use force, that can be understood constitutionally as delegating Congress' power to declare war to the President. Finally, debate over the President's wartime powers need not be further complicated by the objection that a "war" has not been "declared."